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Demotions as Punishment

Management likes to assume that a contract's management rights clause gives them an unlimited license to demote workers who have somehow dissatisfied them. Not true. As in the case of other disciplines, the employer needs good reasons for removing someone from his or her job.

Arbitrators seem to demonstrate a pattern to their decisions that is useful to bear in mind if you're faced with a case where one of your people is demoted. You'll see that cases fall into two categories: those involving poor performance, and those in which individuals are punished by management for doing something. The later type seem to be easier to win.

Hung Up on Supervisor

Management demoted a lead man who didn't comply with a supervisor's request and later hung up the phone on another supervisor. The arbitrator put him back on his old job, stating that the grievant was frustrated when he hung up the phone; demonstrating remorse over his behavior; was an effective lead person and was still capable of performing his job; had complied with all other management directives, and the supervisor with whom he had difficulties had been transferred elsewhere.

Cheating on Meat Packaging Dates

A supermarket meat department manager was suspended and then demoted for violating the market's meat dating policy by authorizing re-wrapping and re-dating of meat products. The union complained the grievant was not put on notice that his actions violated company policy. The arbitrator upheld the discharge, noting that other managers committing similar offenses had received similar disciplines and the grievant violated an important safety policy after being told violation of the policy would not be tolerated.

Reckless Driving

The company demoted a fork lift operator following an accident in which the operator broke a guard rail and failed to report the incident. The arbitrator reinstated him to his job, noting that his earlier safety violations were comparatively minor compared to others who were demoted by management, the damage was serious but this was the grievant's only driving accident, and the grievant's accident record was not as extensive or as numerous as those of other demoted employees.

The employer needs good reasons for removing someone from his or her job

Demotion for Negligence

A training coordinator was demoted for not grading part of a group of employees' recertification tests. The arbitrator put her back on the job, noting that she had just returned from working on a special project and the re-certification workload was too big for her to handle.

Demoted as Punishment

A factory maintenance foreman was demoted as a disciplinary measure after he refused to take a test and pay a pesticide license fee, claiming the company hadn't paid him for the last time he took the test. The arbitrator put him back on the job, noting that the "just cause" standard applied to demotions as well as other forms of discipline.

Didn't Attend Retreat

An assistant news editor at a newspaper was demoted to copy editor for refusing to attend a retreat at her managing editor's house. The arbitrator let the demotion stand, saying that, even though the grievant was not a supervisor, she had leadership responsibilities and the authority to direct outcomes of a particular news publication; the employer had the right to impose disciplinary demotions where disciplinary suspensions have been given out under the agreement; the agreement was silent on disciplinary demotions, and the employer retained the right to manage the work force, including disciplining for just cause.

Absenteeism

An employee was demoted for absenteeism. The arbitrator put him back on the job, noting normal penalties for rule violations are reprimand, suspension and discharge, and nowhere in the contract was demotion mentioned. The demotion violated the employee's seniority and promotion rights, where the contract stated that, "demotions will be made in the reverse order of promotions." Promotions are based upon seniority and qualifications; the grievant obtained his promotion through the bidding process, and was not demoted for lacking qualifications.

Untrained

A worker was demoted from a newly created supervisory position for "inability to perform." The arbitrator reinstated him because, he said, the demotion was arbitrary, unreasonable and disciplinary in effect, despite the allegation of inability to perform. He said the employer had a duty to train new supervisors in supervising others, and there was no evidence that the grievant had received any such training.

Remember to ask these questions when checking out a demotion grievance:

Was the workers' treatment consistent with how others are treated?
Was the demotion for poor performance, and was the employee forewarned of the possibility of demotion?
Was the punishment too harsh for the nature of the rule violation?
Does the management rights clause include the right to demote?
Were the demands placed upon the employee excessive?
Is demotion mentioned in the contract as an optional punishment for rule violations?

--George Haggland. The writer is Professor Emeritus at the School for Workers, University of Wisconsin - Madison.

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